New Jersey Division of Child Protection Permanency v. K.N. and K.E.(074161) ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
New Jersey Division of Child Protection and Permanency v. K.N. & K.E. (A-10/11-14) (074161)
(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court affirms the judgment of
the Appellate Division, as modified, substantially for the reasons expressed in Judge Messano’s written
opinion, which is published at 435 N.J. Super. 16 (App. Div. 2014).)
Argued September 16, 2015 -- Decided December 15, 2015
PER CURIAM
In this appeal, the Court considers the scope of a Family Part judge’s authority to make placement and
licensing decisions under Titles Nine, N.J.S.A. 9:6-8.21 to -8.73; Thirty, N.J.S.A. 30:4C-11 to -14; and specifically
the Resource Family Parent Licensing Act, N.J.S.A. 30:4C-27.3 to -27.15.
In May 2013, the Family Part awarded temporary custody of six-year-old “Tommy” to the Division of
Child Protection and Permanency (“Division”). The Division temporarily placed him with his maternal
grandmother, with whom he had been residing for several months. It was later revealed that Tommy’s maternal
step-grandfather had been the subject of a domestic-violence complaint, which was dismissed. The Division
substantiated the domestic violence claim and determined that the grandparents’ home could not be licensed under
the Resource Family Parent Licensing Act (“Act”). As a result, the Division placed Tommy with his maternal great
aunt who was eligible to be licensed as a resource family parent and receive financial assistance under the Act.
At the permanency hearings that followed, the Law Guardian argued that Tommy should be returned to his
maternal grandparents because Tommy was developing “attachment” issues and experiencing “personality
changes.” The Division maintained that Tommy could not be returned to the grandparents’ home because his step-
grandfather had been the subject of a domestic violence complaint that was substantiated by the Division.
Following the hearings, the Family Part ordered the Division to return Tommy to his grandparents’ home and to
provide them with the financial assistance available to a resource family parent licensed under the Act.
The Division filed an emergent appeal to stay the Family Part’s order. The Appellate Division held that the
Family Part had the authority to place Tommy with his maternal grandparents, but remanded the matter for further
consideration of all relevant statutory and regulatory factors to determine the suitability of the placement. N.J. Div.
of Child Prot. & Permanency v. K.N., 435 N.J. Super. 16 (App. Div. 2014). The Appellate Division also concluded
that the Family Part exceeded its authority when it ordered the Division to make resource family parent payments to
the maternal grandparents, and that a final restraining order entered pursuant to the Prevention of Domestic Violence
Act, N.J.S.A. 2C:25-17 to -35, against an individual in a household bars that household from licensure as a resource
family parent.
This Court granted leave to appeal. 219 N.J. 624-25 (2014).
HELD: The Family Part had the authority to determine that the child’s best interests were served by his continued
placement with a relative not licensed as a resource family parent under the Act. The Family Part did not have the
authority to compel the Division to pay financial assistance under the Act to a relative not licensed as a resource
family parent. Accordingly, the Appellate Division’s judgment is affirmed as to those determinations. Because the
Division returned Tommy to the care and custody of his mother, the Appellate Division’s remand to the Family Part
is dismissed as moot.
1. For future guidance, the Court explains: (1) a Family Part judge may require the Division to pay statutorily
authorized assistance to unlicensed persons caring for a foster child; and (2) entry of a temporary or final restraining
order may be considered by a Family Part judge as a factor in a child’s placement review, but does not automatically
1
disqualify a potential resource family parent from licensure under the Act. N.J.S.A. 30:4C-26.8(d) provides that no
person may serve as a resource family parent “if that person or any adult residing in that person’s household ever
committed a crime which resulted in a conviction for” domestic violence pursuant to the Prevention of Domestic
Violence Act. However, entry of a temporary or final restraining order is not a criminal conviction. (pp. 5-6)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED, substantially for the reasons
expressed in Judge Messano’s opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON;
and JUDGE CUFF (temporarily assigned) join in this opinion. JUSTICE FERNANDEZ-VINA did not
participate.
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SUPREME COURT OF NEW JERSEY
A-10/11 September Term 2014
074161
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent
and Cross-Appellant,
v.
K.N.
Defendant and Cross-
Respondent,
and
K.E.,
Defendant.
IN THE MATTER OF T.E.,
a minor,
Appellant and Cross-
Respondent.
Argued September 16, 2015 – Decided December 15, 2015
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 435
N.J. Super. 16 (App. Div. 2014).
Noel C. Devlin, Assistant Deputy Public
Defender, argued the cause for appellant
cross-respondent (Joseph E. Krakora, Public
Defender Law Guardian, attorney).
Christian A. Arnold, Deputy Attorney
General, argued the cause for respondent
cross-appellant (John J. Hoffman, Acting
Attorney General of New Jersey, attorney;
1
Andrea M. Silkowitz, Assistant Attorney
General, of counsel).
T. Gary Mitchell, Deputy Public Defender,
argued the cause for cross-respondent
(Joseph E. Krakora, Public Defender Parental
Representation, attorney; Mr. Mitchell and
Robyn A. Veasey, of counsel).
Jeyanthi C. Rajaraman argued the cause for
amicus curiae Legal Services of New Jersey
(Melville D. Miller, Jr., President; Ms.
Rajaraman, Mr. Miller, and Mary M. McManus-
Smith, on the brief).
PER CURIAM.
This appeal concerns the scope of a Family Part judge’s
authority to make placement and licensing decisions under Titles
Nine, N.J.S.A. 9:6-8.21 to -8.73; Thirty, N.J.S.A. 30:4C-11 to -
14; and specifically the Resource Family Parent Licensing Act,
N.J.S.A. 30:4C-27.3 to -27.15.
The pertinent facts gleaned from the record are as follows.
In May 2013, the Division of Child Protection and Permanency
(“Division”) filed an Order to Show Cause for Care and
Supervision of T.E. (“Tommy”), the six-year-old son of K.N.
(“Kara”) and K.E. (“Kevin”).1 The Family Part investigated
allegations of domestic violence and drug use in Tommy’s home
and awarded temporary custody of Tommy to the Division. The
Division temporarily placed Tommy in the home of his maternal
1 As did the Appellate Division, we fictionalized the names of
the parties involved to protect their anonymity and to be
consistent with the opinion of the Appellate Division.
2
grandmother, where he had been residing for several months, and
conducted an on-site evaluation of the home. A later evaluation
revealed that Tommy’s maternal step-grandfather had been the
subject of a domestic-violence complaint, which was dismissed.
The Division substantiated the domestic violence claim and
determined that the maternal grandparents’ home could not be
licensed under the Resource Family Parent Licensing Act (“Act”).
As a result, the Division removed Tommy from his maternal
grandparents’ home and placed him with his maternal great aunt
who was eligible to be licensed as a resource family parent and
receive financial assistance under the Act.
At the permanency hearings that followed Tommy’s placement
with his maternal great aunt, the Law Guardian argued that Tommy
should be returned to the home of his maternal grandparents
because Tommy was developing “attachment” issues and
experiencing “personality changes.” The Division maintained
that Tommy could not be returned to the home because the
maternal step-grandfather had been the subject of a domestic
violence complaint that was substantiated by the Division. At
the conclusion of the hearings, the Family Part judge ordered
the Division to return Tommy to the home of his maternal
grandparents and to provide them with the financial assistance
available to a resource family parent licensed under the Act.
3
The Division filed an emergent appeal to stay the Family
Part’s order. The Appellate Division held that the Family Part
had the authority to place Tommy with his maternal grandparents,
but remanded the matter for further consideration of all
relevant statutory and regulatory factors to determine the
suitability of the placement. N.J. Div. of Child Prot. &
Permanency v. K.N., 435 N.J. Super. 16 (App. Div. 2014). The
Appellate Division also concluded that the Family Part exceeded
its authority when it ordered the Division to make resource
family parent payments to the maternal grandparents, and that a
final restraining order entered pursuant to the Prevention of
Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, against an
individual in a household bars that household from licensure as
a resource family parent. Id. at 32-33, 33-38. This Court
granted leave to appeal. 219 N.J. 624-25 (2014).
We are called upon to resolve two issues: (1) whether the
Family Part has the authority to place a minor who is under the
care and supervision of the Division in the household of a
relative who has not been licensed by the Division as a resource
family parent under the Act; and (2) whether the Family Part may
compel the Division to provide to an unlicensed household
financial assistance available to a resource family parent
licensed under the Act.
4
We affirm, substantially for the reasons expressed in the
Appellate Division opinion, that the Family Part judge had the
authority to determine that the child’s best interests were
served by his continued placement with a relative not licensed
as a resource family parent under the Act, and that the Family
Part judge did not have the authority to compel the Division to
pay financial assistance under the Act to a relative not
licensed as a resource family parent. However, because the
Division returned Tommy to the care and custody of his mother,
we dismiss as moot the Appellate Division’s remand to the Family
Part to consider factors relevant to a placement review,
including the claim of prior domestic violence involving the
maternal step-grandfather.
We add the following two points for future guidance.
First, a Family Part judge may require the Division to pay
statutorily authorized assistance to unlicensed persons caring
for a foster child. See N.J.S.A. 30:4C-2(a) (describing the
Division as being responsible for the “maintenance . . . of
children”); see also N.J.S.A. 30:4C-2(f) (stating that
“maintenance . . . includes but is not limited to moneys
expended for shelter, utilities, food, repairs, essential
household equipment, and other expenditures to remedy situations
of an emergent nature to permit, as far as practicable”).
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Second, entry of a temporary or final restraining order may
be considered by a Family Part judge as a factor in a child’s
placement review, but does not automatically disqualify a
potential resource family parent from licensure under the Act.
N.J.S.A. 30:4C-26.8(d) provides that no person may serve as a
resource family parent “if that person or any adult residing in
that person’s household ever committed a crime which resulted in
a conviction for” domestic violence pursuant to the Prevention
of Domestic Violence Act. However, entry of a temporary or
final restraining order is not a criminal conviction. See J.D.
v. M.D.F., 207 N.J. 458, 474 (2011) (noting that “the Prevention
of Domestic Violence Act tests a victim’s entitlement to relief
in accordance with the preponderance of the evidence standard,
consistent with the lowered burden of proof in civil
proceedings”); see also Crespo v. Crespo, 408 N.J. Super. 25,
38-40 (App. Div. 2009) (concluding that restraints under the
Prevention of Domestic Violence Act are essentially civil in
nature), aff’d o.b., 201 N.J. 207 (2010).
The judgment of the Appellate Division is modified and
affirmed.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and SOLOMON; and JUDGE CUFF (temporarily assigned) join in this
opinion. JUSTICE FERNANDEZ-VINA did not participate.
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SUPREME COURT OF NEW JERSEY
NO. A-10/11 SEPTEMBER TERM 2014
ON APPEAL TO Appellate Division, Superior Court
NEW JERSEY DIVISION OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent
and Cross-Appellant,
v.
K.N.
Defendant and Cross-Respondent,
and
K.E.,
Defendant.
IN THE MATTER OF T.E.,
a minor,
Appellant and Cross-Respondent.
DECIDED December, 15, 2015
Chief Justice Rabner PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM AS
CHECKLIST
MODIFIED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6